ROBERT J. DAILEY, APPELLANT,
v.
MULTICON DEVELOPMENT, INC., APPELLEE
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A condominium owner sued a developer for breach of warranty and negligence due to water damage to his apartment caused by a defective exterior wall. The trial court granted a motion in limine excluding evidence of repair costs without proper notice to the owner, reducing his damages recovery. The appellate court reversed, holding that the motion in limine was improperly used to summarily dismiss a portion of the case without meeting the notice and procedural requirements of a summary judgment motion.
The court held that the trial court erred in granting the motion in limine because it exceeded the proper scope of such motions by effectively serving as a motion for summary judgment without meeting the notice and procedural requirements of Florida Rule of Civil Procedure 1.510. The court reversed and remanded for a new trial, noting that the condominium documents were not properly submitted for consideration and due process required that the appellant receive notice and opportunity to respond to the legal argument.
[1] A motion in limine used to summarily dismiss a portion of a party's case, rather than merely exclude improper or prejudicial evidence, requires notice and an opportunity…
[2] A motion in limine that functions as a motion for summary judgment must comply with notice and procedural requirements.
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Join FLexlaw to unlock all legal intelligence“The purpose of a motion in limine is generally to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.”
Establishes the limited proper scope of motions in limine as evidentiary tools rather than summary dispositive motions
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Join FLexlaw to unlock all legal intelligenceAppellant purchased a condominium apartment from appellee/developer and subsequently suffered severe water leakage from a defective exterior wall that…
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BERANEK, Judge.
Appellant/owner commenced action against appellee/developer for breach of warranty and negligence in the construction of appellant’s condominium apartment. After purchasing his apartment, appellant suffered severe water leakage which, he contended, was entering the apartment through a defective exterior wall and which damaged his furniture and rugs. He sought damages for repair of the wall, diminution in value of the apartment, consequential damages while repairs were being effected, as well as damages for his ruined rugs and furniture. In its answer, appellee generally denied all the allegations and set forth five affirmative defenses alleging contributory negligence, failure to mitigate damages, and three defenses of waiver or estoppel.
Immediately prior to the jury trial, and without any notice to appellant, appellee made an oral motion in limine to exclude any evidence by appellant on the issue of costs of repair of the defect in the wall. Appellee based its motion on the grounds that only the condominium association could claim damages for defects in the wall. This argument is based on the declaration of condominium which apparently provided that the condominium association was responsible for repairing the wall.
Therefore, appellee argued, appellant was not a proper party to recover the cost of repair.
The trial court granted appellee’s motion on these grounds even though it does not appear that the condominium documents were ever properly submitted for the court’s consideration. As repair of the wall constituted the largest item of damage in the suit, appellant’s measure of recovery was dramatically reduced. At the conclusion of the trial, the jury found appellee 75 percent negligent and assessed total damages at $8,000.
On appeal, appellant asserts that the trial court erred in granting the motion in limine.
We agree and reverse. Appellant initially complains of lack of notice. The purpose of a motion in limine is generally to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial. Adkins v. Seaboard Coast Line Railroad Company, 351 So. 2d 1088 (Fla. 2d DCA 1977). Notice is not absolutely required where the oral motion is akin to an evidentiary objection at trial. The problem here is that the motion in limine was used for more than its purpose of merely excluding irrelevant or improper prejudicial evidence. Appellee, by way of its motion in limine, attempted to summarily dismiss a portion of appellant’s case.
The trial court was asked to rule that as a matter of law appellee was not liable to appellant for damages to the wall. Ap-pellee’s action is comparable to a motion for summary judgment but without the notice provisions and other requirements of Florida Rule of Civil Procedure 1.510. It may very well be that appellant cannot maintain this action for damages to the wall, but due process dictates that appellant be given notice and an opportunity to properly respond. We further note the absence of the condominium documents from evidence which also militates for a new trial on all issues.
REVERSED AND REMANDED FOR NEW TRIAL.
DOWNEY and GLICKSTEIN, JJ., concur.
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Fittipaldi USA, Inc. v. Helio Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005)…See Buy-Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283 (Fla. 4th DCA 1989)(pur-pose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial); Dailey v. Multicon Dev., Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982). Since attorney Miller had previously testified concerning the poor quality of Castro-neves’ prior agreements, FUSA can hardly claim it was surprised or ambushed by Miller’s consistent trial testimony. In FUSA’s second point on…
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Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992)…See Buy-Low Save Centers, Inc. v. Glinert, 547 So. 2d 1283, 1284 (Fla.4th DCA 1989); Brock v. G.D. Searle & Co., 530 So. 2d 428, 430-431 (Fla.lst DCA 1988); Rice v. Kelly, 483 So. 2d 559, 560 (Fla.4th DCA 1986); Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla.4th DCA 1982)); see also Lombard v. Executive Elevator Serv., 545 [*96] So. 2d 453 (Fla.3d DCA 1989). We therefore reverse the final judgment.2 Reversed and remanded. . Plaintiff did not agree to or invite this procedure. See Whitney v. Brown…
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Buy-Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283 (Fla. 4th DCA 1989)…the damages owed by the Glinerts were to be calculated. Generally, the purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial. Dailey v. Multicon Development, Inc., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982). However, where the motion is used to do more than merely exclude irrelevant or improper prejudicial evidence, the use of the motion begins to become improper. Thus, the courts have held that “trial courts should not allow…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adkins v. Seaboard Coast Line R.R. Co., 351 So. 2d 1088 (Fla. 2d DCA 1977)